LEGALLY TWEETING: 5 LEGAL ISSUES FOR TWITTER USERS

Twitter’s popularity is growing by the day, and the Tweet is now a daily (and preferred) method of communication for many. According to a recent infographic, there are currently over 465 million registered Twitter accounts and well over 100 million active users. Even I entered the Twitter world @PedramTabibi. Twitter is also beginning to see green, as Twitter’s projected advertising revenue will surpass half a billion dollars ($540 million) by 2014.

At the same time, however, there are responsibilities and laws that come with Twitter use. As companies increasingly integrate social media platforms into their business models, new, previously unforeseen legal issues are arising. Twitter is no exception, and the use of this extremely popular social media tool brings with it several potential legal risks that companies and individuals should keep in mind.

A recent article by Suzanne Dibble discussed 10 legal issues to consider when using Twitter. As a social media lawyer at Meltzer Lippe, here’s 5 legal issues individuals and companies should watch for when using Twitter:

1. Who Owns A Twitter Account, Employer or Employee? I recently discussed a rising social media legal issue – when companies seek to prohibit ex-employees from taking social media content or accounts. Highlighted by the now-famous PhoneDog_Noah lawsuit, involving a dispute between an employer and ex-employee over a Twitter account and its 17,000+ followers, the question of who owns a social media account – including Twitter accounts – between an employer and employee is hot topic these days. Companies should take this opportunity to create social media policies for employees that appropriately address this and other potential social media legal issues before they too see a dispute arise.

2. Intellectual Property Infringement. While it may seem like a no-brainer that infringing upon the intellectual property of others is a no-no, the ease of use and rapid pace with which individuals send out Tweets and otherwise post on Twitter may mean individuals and companies are not always on guard. According to one source, there were over 4,400 copyright infringement claims made in response to Tweets or they content they shared. Whether it is text, a hyperlink to infringing conduct or a picture, intellectual property rights are as real on Twitter as on any other platform, and Twitter users must be mindful to respect the intellectual property rights of others when Tweeting.

3. Twitter Endorsements and FTC Guidelines. Twitter users who are paid to endorse products must disclose such a business relationship in their Tweets, as Dibble notes. In 2009, the Federal Trade Commission released revised guidelines concerning the use of endorsements and testimonials in advertising. These revised guidelines addressed the need for disclosure when Twitter followers do not know that an individual is a paid endorser for a product he or she Tweets about. In fact, the FTC created a “What People Are Asking” page with the following question:

“A famous athlete has thousands of followers on Twitter and is well-known as a spokesperson for a particular product. Does he have to disclose that he’s being paid every time he tweets about the product?

It depends on whether his readers understand he’s being paid to endorse that product. If they know he’s a paid endorser, no disclosure is needed. But if a significant number of his readers don’t know that, a disclosure would be needed. Determining whether followers are aware of a relationship could be tricky in many cases, so a disclosure is recommended.”

Given the 140 character limit, though, a disclosure may be difficult to achieve. However, the FTC provided some guidance here as well:

“What about a platform like Twitter? How can I make a disclosure when my message is limited to 140 characters?

The FTC isn’t mandating the specific wording of disclosures. However, the same general principle – that people have the information they need to evaluate sponsored statements – applies across the board, regardless of the advertising medium. A hashtag like “#paid ad” uses only 8 characters. Shorter hashtags – like “#paid” and “#ad” – also might be effective.”

While it appears the FTC has yet to go in earnest after violations of the revised guidelines, that does not indicate the FTC will not set its sights on Tweets requiring disclosure in the future. Individuals and companies that disregard these FTC guidelines on social media platforms including Twitter are taking risks and should be mindful of these guidelines going forward.

4. Twitter Use During Trial – The Jury Is Out. Literally. As I discussed recently, Twitter and other social media use is becoming a threat to jury trials. Increasingly, jurors are disregarding instructions and taking to social media during trials, resulting in court warnings and even jail time. In one Arkansas trial, a juror continued to Tweet after the trial judge warned him and on the day the jury returned the death sentence for a defendant, went so far as to Tweet about the verdict before it was publicly known. While courts grapple with how to best address this issue and avoid mistrials, attorneys and courts need to be cognizant of this issue and jurors should respect their juror duties and avoid serious trouble when becoming Tweet-happy in court.

5. Avoid Posting Confidential Information. This too, seems simple enough in theory. As Dibble notes, since Tweets are public statements, individuals and companies should avoid disclosing any confidential information, whether internal, client or third-party. Posting another person’s private or confidential information, including credit card information, private addresses, and non-public phone numbers and email addresses, is a violation of Twitter’s rules. Beyond that, such activity may open up a host of other legal issues and liability to Twitter users, and should be avoided.

While Twitter remains a popular and useful social media tool, individuals and companies must be mindful of the above legal issues when taking to Twitter and should act responsibly. After all, even the smallest things – like a 140 character Tweet – can pack a big punch.